Wills and Estates Flashcards
Executing A Will - Requirements
(1) Testamentary Intent
(2) Testamentary Capacity
(3) Follows the statutorily required formalities
Testamentary Intent
At time of execution, testator intended that this particular document be his will
Can be overcome by
(1) Undue Influence
(2) Fraud
(3) Mistake
Undue Influence
Challenger must prove that the wrongdoer exerted such influence over the testator that
(1) overcame testator’s free will AND
(2) Caused testator to make a transfer that he wouldn’t otherwise have made
There’s a PRESUMPTION of undue influence IF:
(1) Wrongdoer was in a confidential relationship with testator; AND
(2) Suspicious circumstances surrounding preparation/execution of the will
Fraud
(1) In the execution = Fraud as the nature of contents or the writing itself –> WILL IS INVALID
(2) In the inducement = Proof that a beneficiary made a knowingly false representation to testator for the purpose of inducing the testator to execute a will in his favor AND that the testator wouldn’t have made such a devise in absence of the representation
If only part of a will was the product of fraud –> The court can reject that fraudulent part (falls into the residuary) and probate the rest of the will
Mistake
(1) In the execution - Mistake as to the nature of the document (made by testator) –> Will is invalid
(2) In the inducement - Testator executes will/clause because testator is mistaken to the true facts –> does NOT affect testamentary intent. NO RELIEF GRANTED.
Testamentary Capacity
Testator must be at least 18 y/o and be of sound mind when the will is executed
Sound mind = Testator has the ability to understand
(1) nature, condition and extent of his property,
(2) Nature of the disposition he is making of his property; and
(3) Names of, and relationship to, the natural objects of his bounty
Stocks
COMMON LAW: stock owned at the time of the will signing was allowed to pass in the bequest.
Later-acquired stock shares from a stock dividend would NOT be included unless the testator changed the will.
Stock splits were allowed to pass to the bequest without a change in the will.
BUT MODERN STATUTES/UPC treat stock splits and stock dividends the same - both can pass to the bequest without a new writing.
Statutory Formaliities
Depends on the type of will
(1) Attested will
(2) Holographic will
(3) Contract to make a Will
(4) Joint/Mutual Will
(5) Codicil to a Will
Attested Will
(1) In writing
(2) signed by testator
(Or by someone in testator’s presence who testator directs to sign)
(3) Witnessed or Attested
Attested = acknowledged by the testator before a notary public
Witnessed = Signed by TWO people - each of whom signed within a reasonable time of witnessing testator sign the will or hearing Testator acknowledge that the signature on the will in his
Witnesses can be people who are interested witnesses (beneficiaries under the will).
Holographic Will
Valid under UPC IF:
(1) Material portions of the will are in the testator’s handwriting AND
(2) Testator signs the will
Contract to Make a Will
Contract to dispose of a person’s property (real or personal) by will is VALID under UPC.
Contract to make or NOT revoke a will or to die intestate? –> Established by
(1) Provisions of decedent’s will stating material provisions of the K
(2) Express reference in decedent’s will to a K and extrinsic evidence proving the terms of the K; OR
(3) Writing signed by decedent that evidences the K
Joint/Mutual Will
In many states –> When 2 people execute a single document as their joint will –> Presumption that the parties have contracted to NOT revoke except with both parties’ consent
UPC –> NO PRESUMPTION, revocable by either party
Codicil
Instrument executed after a will that refers to another document, by adding to, explaining, or deleting from a previous testamentary instrument
MUST follow same formalities as attested will – In writing, signed be testator and witnessed/attested
Codicil republishes the will to which it refers - original will is treated as if it were written on the date the codicil was executed
How to Revoke a Will
(1) Physical Act - burning, tearing, cancelling, obliterating, or destroying the entire will or any part of it
Physical act doesn’t need to touch the will but it must be done with the intent to revoke the will.
(2) Execution of a Subsequent Will
(3) Divorce (re provisions in favor of the ex-spouse)
Revoking a Will - execution of a subsequent will
If subsequent will has express clause of revocation –> revokes prior will
If subsequent will can revoke by implication –> If testator intended the subsequent will to replace the former will.
Look for subsequent will disposing all or substantially all of the property disposed in the first will.
Revoking a Will - Divorce
Upon divorce, provisions in favor of the ex-spouse are ineffective UNLESS the testator makes clear that such provisions were intended to survive divorce
Methods to Revive a Will
Revoked will can be revived IF it’s
(1) restated
(2) re-executed or
(3) republished or
(4) there’s other clear evidence of intent to revive
Republication = resign the original will and have two witnesses attest the will
Codicil made to a revoked will revives the revoked will as of the date of the codicil
Lost wills?
If the will was in the testator’s possession prior to the death and cannot be found after death –> PRESUMPTION that testator destroyed the will with the intent to revoke
Who can have standing to contest a will?
Anyone with a beneficial interest if the challenge is successful
NOTE: Heirs always have standing
Grounds for contesting an executed will
(1) Lack of testamentary capacity
(2) Undue Influence
(3) Mistake
(4) Fraud
(5) Ambiguity
In terrorem Clause
No-Contest Clause
Attempts to disqualify anyone contesting the will from taking under it
Most courts won’t apply the clause to a beneficiary if the challenge was based on reasonable cause
Interpreting the Will - Incorporation by Reference
An unattested document may be incorporated into the will if:
(1) The writing was in existence at the time of execution of the will,
(2) The language of the will manifests this intent, and
(3) Describes the writing sufficiently to permit its identification
Interpreting the Will - Facts of Independent Signfiicance
A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after execution of the will
(1) Personal Property List
(2) Dispositions to an Inter Vivos Trust
Facts of Independent Significance - Personal Property List
Under the UPC, Testator can write a list disposing of personal property (not $)
if the writing describes the beneficiaries and property with reasonable certainty
The writing disposes of the property even if not properly attested
The writing can be created after the will is executed
